Defense of Marriage Act (1996)

Major Acts of Congress
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Defense of Marriage Act (1996)

Andrew Koppelman

Excerpt from the Defense of Marriage Act

In determining the meaning of any Act of Congress, or of any ruling, regulation, or inter pretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife and the word "spouse" refers only to a person of the opposite sex who is a husband or wife.

The choice of law provision

No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The Defense of Marriage Act (DOMA) (P.L. 104-199; 110 Stat. 2419) denies federal recognition to same-sex marriages and authorizes the states to deny such recognition as well. The act has two provisions. One of these defines marriage, for federal purposes, as exclusively heterosexual, thereby depriving same-sex couples of all the federal benefits to which other married couples are entitled. The other provision authorizes individual states to ignore same-sex marriages when they are performed in other states.

The constitutional basis for the provision that defines marriage is simply Congress's power to define the terms of a federal statute. The second provision
relies on the "full faith and credit clause" of Article IV, sec. 1, of the U.S. Constitution. This clause, after requiring states to give "full faith and credit" to one another's acts and judicial proceedings, provides that "Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

DOMA was enacted after a 1993 decision by the Hawaii Supreme Court strongly suggested that the state would make same-sex marriage legal. (After DOMA was enacted, the state court's decision was overturned by an amendment to the state constitution.) States usually recognize marriages celebrated in other states, and the federal government usually defers to each state's definition of marriage. But neither of these rules has been understood to be a constitutional requirement. Opponents of same-sex marriage feared that recognition of same-sex marriage would damage the institution of marriage in the United States, and so sought, through DOMA, to create an exception to these ordinary rules. Those who opposed DOMA, noting the unprecedented nature of the federal legislation, thought that it was an unconstitutional abuse of the Article IV power. These opponents emphasized that Congress was responding to a "problem" that did not exist, since no state then recognized same-sex marriages.

DOMA has played an important role in state courts since Vermont recognized the legality of same-sex unions. Vermont Civil Unions, created by statute in 2000, have all the rights and responsibilities of marriage without the name. State courts have cited DOMA when denying recognition to Vermont Civil Unions. For example, Lofton v. Kearney, a 2001 Florida ruling, states that DOMA "precludes homosexuals who marry in other states from being recognized by Florida as a legal union."

Citations such as these, however, appear to rest on an error of law. The full faith and credit clause has never been interpreted to require states to recognize marriages celebrated in other states that are contrary to the public policy of the particular state. DOMA is, in fact, irrelevant to almost any question that is likely to come before a court. The Supreme Court has interpreted the full faith and credit clause to constrain state courts only when the state would violate parties' due process rights by applying its own law to the case.

The Defense of Marriage Act is one episode in a continuing cultural and political battle over the status of same-sex couples. Republican Senator Don Nickles of Oklahoma, one of the original sponsors of DOMA, argued that, because marriage is already traditionally understood to be exclusively heterosexual, the law "merely reaffirm[s] what is already known, what is already in place" (Committee on the Judiciary, U.S. Senate, 104th Cong., 2d Sess., Hearing on Defense of Marriage Act, July 11, 1996). Opponents argue that, if the exclusive heterosexuality of marriage were that obvious, there would have been no need for the statute.

Defense of Marriage Act

Dictionary of American History
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DEFENSE OF MARRIAGE ACT

DEFENSE OF MARRIAGE ACT. President Bill Clinton signed the Defense of Marriage Act (Public Law 104-199) at 12:50 a.m. on 21 September 1996. It permitted any state to refuse recognition to any same-sex marriage performed in any other state. It also defined "marriage" as exclusively the union of one man and one woman for all purposes under federal law. Clinton signed it almost surreptitiously because he had won considerable lesbian/gay support in 1992 and hoped to do so again in 1996, but he feared the political cost of not opposing same-sex marriages.

A gay couple in Minneapolis first challenged the prohibition on same-sex marriages in 1970. Courts routinely dismissed such cases until 1993, when the Hawaii state supreme court, in Baehr v. Levin, found that denial of marriage licenses to same-sex couples violated the state constitutional prohibition on discrimination on the basis of sex. Along with similar decisions in Alaska and Vermont, the Hawaii case led conservative activists to push for state laws prohibiting recognition of same-sex marriages.

The federal law reflected both conservative opposition to same-sex marriages and Republicans' desire to create political problems for President Clinton during an election year. The Defense of Marriage Act remains controversial, as lesbian/gay civil rights activists continue to push for same-sex marriage.

BIBLIOGRAPHY

Cain, Patricia A. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Boulder, Colo.: Westview, 2000.

Chambers, David L. "Couples: Marriage, Civil Union, and Domestic Partnership." In Creating Change: Sexuality, Public Policy, and Civil Rights. Edited by John D'Emilio, William B. Turner, and Urvashi Vaid. New York: St. Martin's, 2000.

Eskridge, William L. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.